Rick Santorum's Views on Same Sex Marriage May Involve a Category Mistake

Rick Santorum’s views on gay marriage were getting him booed by college students in New Hampshire. [1]  He’s against it, of course, but what is noteworthy is how he didn’t go about justifying his views.  While he talked about the right of children to be raised by their biological parents, and his preference for legislative rather than judicial authorization for same-sex marriages, he never once said that sexual acts with a member of one’s own gender should be against the law.

The reason why that is important is that in the common law tradition inherited from England by every state in the United States except Louisiana, marriage is a civil contract and nothing more. [2]  Whether a marriage complies with religious requirements is not of itself pertinent to legal consideratons of the matter, not only because of the First Amendment’s prohibition of the establishment of religion, but because of the common law conception of marriage that pre-dates the Constitution.

Now contracts are not enforceable if they violate public policy. [3]  That’s why a drug dealer can’t sue for his money in court.  So the pertinent question as to same-sex marriage, considered, as it ought to be, as a civil contract, is whether it violates public policy.

At one time it most certainly would have.  But in 2003, in Lawrence v. Texas, the United States Supreme Court struck down a Texas statute making it a crime for two persons of the same sex to engage in sexual conduct on the ground that it violated the due process clause of the Fourteenth Amendment to the U.S. Constitution. [4]  Thus, whatever opinions might be privately held regarding the morality of homosexual activity, it is clearly not violative of public policy. 

So it appears that there is nothing in a marriage contract between two members of the same gender that violates public policy.  What is found objectionable about a same-sex marriage is not two people of the same gender living together or sharing property, but in engaging in particular sexual activities.  But it is those sexual activities that cannot constitutionally be proscribed, and cannot, therefore, serve as grounds for invalidating marriage contracts.

As for Mr. Santorum, in his talk with the college students, he specifically said that he didn’t have any problem with people having any kind of relationship they desired, but that traditional marriage should have a special status.  If that is how he feels, then he agrees with the Court in Lawrence v. Texas that sex acts between two people of the same gender should not be illegal.  But if that is true, how can he maintain with any consistency that a civil contract of marriage between two members of the same gender isn’t valid?

During his talk Mr. Santorum implied that the idea that a marriage is whatever people want it to be is ridiculous.  But that is the nature of a civil contract.  As long as it doesn’t contemplate some illegality, it is indeed whatever the parties to the contract want it to be.

Your humble servant has the same religion as Mr. Santorum, and has the same religious view of marriage that he has.  The public debate, however, is not about the Catholic sacrament of marriage, but the civil contract that has the same name.  We should not confuse the two because we have, by now, learned that the imposition of religion by governmental force is productive of nothing but hypocrisy.